Kilgore v. Bird

• Decision Date: 24 February 1942
• Citation: 149 Fla. 570,6 So.2d 541
• Parties: KILGORE v. BIRD et al.
• Court: Florida Supreme Court

6 So.2d 541

149 Fla. 570

KILGORE v. BIRD et al.

Florida Supreme Court

February 24, 1942

Dickenson & Dickenson, of Tampa, S. Whitehurst's Sons, of Brooksville, and Thompson & McMullen, of Clearwater, for petitioner.

Anna A Krivitsky and Howard E. Joseph, both of Tampa, for respondents.

WHITFIELD, Justice.

A petition for prohibition has been filed but the court decides that prohibition is not the proper remedy in this case. However leave is given to use the petition as an application for a writ of certiorari upon compliance with Rule. The action is to recover damages for alienation of affection brought by a wife against her husband's father.

A statute provides that in all cases after declaration is filed, the plaintiff may file interrogations on motion for the defendant to answer 'upon any matter as to which discovery may be sought.' Comp.Gen.Laws 1927, § 4406.

Among the interrogations required by the court to be answered are the following:

3. When did your son, Chester W. Kilgore, leave his wife, Elva Kilgore, the plaintiff in this case, and for what reason?

5. Do you know whether your son Chester W. Kilgore did marry without having obtained a divorce?

6. State what knowledge you have prior to your son's Chester W. Kilgore leaving Pinellas County, State of Florida, that he intended to remarry?

7. Do you know whether your son Chester W. Kilgore secured a divorce from Elva Kilgore, the plaintiff in this case prior to his remarriage?

9. Is your son living with another woman now?

13. Did you not upon divers occasions, prior to Chester's abandonment of his wife, Elva Kilgore, express yourself to the effect that it was a mistake on Chester's part to have ever married Elva Kilgore, and to have married into her family?

14. Have you not threatened, either orally or by written statement, to send your son, Chester W. Kilgore, out of the State if he continued to live with his wife, Elva Kilgore?

15. Do you not threaten your daughter-in-law, Elva Kilgore, by written communication, to send your son, Chester W. Kilgore, to South America?

16. Is it not a fact that by reason of your personality and wealth you have always exerted great influence on your son, Chester W Kilgore?

17. Were you not greatly opposed to the marriage of your son Chester W Kilgore to Elva Kilgore in the first instance?

21. Did you not make the statement to Chester that you would cut off his inheritance by your last will and testament if he did not leave his wife, Elva Kilgore, and abide by your wishes in the matter?

22. Did you not make similar statements to the same effect to other parties?

23. Have you not made remarks to your son, Chester W. Kilgore, and others derogatory to the character of Elva Kilgore?

25. If such remarks were so made by you, did they have any basis in fact?

27. Did you not make unkind and insulting remarks about your daughter-in-law, Elva Kilgore, to your son, Chester W. Kilgore, and other persons ever since they have been married? Such remarks as the following, and other statements to the same effect; (a) That she was far beneath his station in life socially or/and wealth. (b) That she had not and would not properly take care of her husband, your son, Chester W. Kilgore. (c) That she had not and would not look after his comfort and needs. (d) That she was not the proper person to be his wife. (e) That she would not be able to bear any children to him.

29. Did you not have knowledge that a warrant was obtained and was issued against your son, Chester W. Kilgore, for desertion and non-support; also that he was wanted by the law upon the charge of bigamy?

30. Did you ever make any agreement with either Mrs. Kilgore or any officer of the law that you would produce Chester to answer these charges?

33. Have you not been corresponding with your son, Chester W. Kilgore, all along ever since he left in 1938?

34. Have you not known all along, ever since your son, Chester W. Kilgore, left Florida in 1938, as to his whereabouts?

36. Has not your son, Chester W. Kilgore, always been dependent upon you for money?

37. Did you furnish your son, Chester W. Kilgore, with the money upon which he was enabled to depart from his home in Pinellas County?

38. Have you not been furnishing your son, Chester W. Kilgore, money since his departure for the purpose of enabling him to stay away from Pinellas County?

40. When did you last hear from your son, Chester W. Kilgore?

41. Where did you hear from him?

42. Where is he at the present?

53. If you did blame her, did you not convey this blame to your son, Chester, W. Kilgore?

56. For how many years, and for what length of time did Chester W. Kilgore work for you? 57. Is it not a fact that Chester W. Kilgore, your son, has always been and is now dependent upon you for support money upon which to live?

59. Did not Elva Kilgore work to help Chester make ends meet?

69. Was it not in this business that you employed your son, Chester W. Kilgore, to assist you?

70. Did you not tell your son, Chester W. Kilgore, that you did not care how much money you spent on him and his friends together with the fruit buyers, so long as he did not spend anything on Elva?

71. Have you at any time since Chester's leaving attempted to persuade Elva Kilgore to get a divorce from Chester?

72. Did you not try to persuade your son, Chester W. Kilgore, to get a divorce, even before he left here?

73. Did you not send your attorney, Mr. James Whitehurst, to your daughter-in-law, Elva Kilgore, trying to persuade her to get a divorce from your son, Chester W. Kilgore?

74. Did you not agree to pay the expenses of the divorce if one was obtained by your daughter-in-law, Elva Kilgore, from your son, Chester W. Kilgore, and pay her some money if she got a divorce from him?

Certiorari is a discretionary common-law writ which, in the absence of an adequate remedy by appeal or writ of error or other remedy afforded by law, a court of law may issue in the exercise of a sound judicial discretion to review a judicial or quasi judicial order or judgment that is unauthorized or violates the essential requirements of controlling law, and that results or reasonably may result in an injury which section 4 of the Declaration of Rights of the Florida constitution commands shall be remedied by the due course of law in order that right and justice shall be administered. Hartford Accident & Indemnity Co. v. City of Thomasville, 100 Fla. 748, 130 So. 7.

The common law of England and English general statutes in force in 1776 are by statute in force in Florida when not inconsistent with the constitution and laws of Florida, section 87, C.G.L. It is not shown that any English statute enacted before 1776 forbids the use of a writ of certiorari except to review final judgments.

There is no statute in this State regulating the judicial use of the commonlaw writ of certiorari. The statute relating to civil courts of record does not expressly limit the use of a writ of certiorari to a review of final judgments, and if it does so by implication, such limitation is confined to civil court of record cases.

The constitution expressly provides that the Supreme Court may issue writs of certiorari and such other writs 'necessary or proper to the complete exercise of its jurisdiction,' Const. art. 5, § 5, meaning the jurisdiction of causes as defined in the constitution. The organic power to issue such writs is without any limitation upon the discretionary powers of the court as to the use of such discretionary writs when no other adequate remedy is offered by law.

The statutory proceedings for questions to be propounded by the plaintiff and answers thereto by the defendant, etc., to be had in the progress of a law suit, are distinct from ordinary judicial proceedings; and if such statutory authority is illegally used or so abused as to cause an injury which cannot be adequately remedied by appeal or writ of error after final judgment in the cause, and the statute affords no appellate review of the distinct statutory proceeding, certiorari may be applied before final judgment within the discretion of the appellate court under section 5, Article V, and section 4, Declaration of Rights, Florida constitution; section 87, C.G.L.

In Florida there are in use several kinds of writs of certiorari, viz.: the common-law writ, the statutory writ to review judgments of the civil courts of record, section 5167, C.G.L., the Rule certiorari to review interlocutory appeals in equity under Rule 34, the Rule certiorari for supplying omitted parts of records on appeals or writs of error, and writs of certiorari issued to review quasi judicial judgments or orders of quasi judicial bodies or officers. In re Paul Grubb, 116 Fla. 387, 156 So. 482. The common-law use of a writ of certiorari to remove a cause from one court to another having trial jurisdiction of such removed cause has not been used in Florida in view of the constitutional and statutory designations of the jurisdiction of the courts in which the judicial power of the State is vested by the constitution.

Writs of certiorari from the Supreme Court to civil courts of record are authorized by section 5167, C.G.L., and have reference primarily to a review of final judgments of the circuit courts on writs of error or appeals from final judgments of civil courts of record.

Even such statutory application of a writ of certiorari as above stated does not preclude the Supreme Court from using a discretionary writ of certiorari to review proceedings in any lower courts under section 5, Article V, of the constitution when they have acted without authority or the essential requirements of the law have been violated, causing material injury, and no other adequate...